Citation Nr: 0903240
Decision Date: 01/30/09 Archive Date: 02/09/09
DOCKET NO. 06-04 538 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for an
acquired psychiatric disability, and, if so, whether service
connection is warranted.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
gastrointestinal disability, and, if so, whether service
connection is warranted.
3. Entitlement to service connection for headaches.
4. Entitlement to service connection for total body joint
pain.
5. Entitlement to service connection for profuse sweating.
6. Entitlement to service connection for a disability of the
liver.
7. Entitlement to service connection for a neurologic
disability of the lower extremities.
8. Whether the evaluation for joint pain, left hip, right
elbow and right shoulder, claimed as manifestations of an
undiagnosed illness, was properly reduced from 20 percent
disabling to noncompensable, effective February 3, 2005.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1987 to May 1993.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Salt Lake
City, Utah.
All issues, other than whether to reopen the claims for
entitlement to service connection for an acquired psychiatric
disability and a gastrointestinal disability, are addressed
in the REMAND portion of the decision below and are REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. In a September 2003 rating decision, the RO denied
service connection for bipolar disorder and notified the
veteran of that decision and of his appellate rights. The
veteran did not appeal.
2. In a December 2003 rating decision, the RO denied service
connection for a stomach and bowel condition and notified the
veteran of that decision and of his appellate rights. The
veteran did not appeal.
3. Evidence added to the claims file since the September and
December 2003 decisions that is not cumulative or redundant
of evidence previously of record, raises the reasonable
possibility of substantiating the respective claims.
CONCLUSIONS OF LAW
1. The September 2003 and December 2003 rating decisions
that denied service connection for bipolar disorder and a
stomach and bowel condition, respectively, are final. 38
U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104a (2008)
2. New and material evidence has been received to reopen
claims for entitlement to service connection for an acquired
psychiatric disability and a gastrointestinal disability and
the claims are reopened. 38 U.S.C.A. §5108 (West 2002); 38
C.F.R. § 3.156(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Two of the issues before the Board involve claims for service
connection that have previously been denied. In a September
2003 rating decision, the RO denied service connection for an
acquired psychiatric condition which the veteran had claimed
as insomnia, depression, and loss of memory. In a December
2003 rating decision, the RO denied service connection for a
stomach and bowel condition.
These claims initially arose from an April 2003 statement
from the veteran that "I would like the Gulf War Syn. Added
to my original claim." In a letter received in June 2003,
he explained that he was seeking service connection for
insomnia, depression, fatigue, memory problems, constipation
and diarrhea. Thus, the veteran's assertion was that these
reported symptoms were evidence of an undiagnosed illness due
to service in Southwest Asia in the 1990's. See 38 C.F.R.
§ 3.317.
As to his current requests, the veteran has asserted that he
suffers psychiatric and gastrointestinal disabilities as the
result of his service connected knee disabilities, including
medication prescribed for those disabilities. This reliance
on a new theory of entitlement - secondary service connection
- does not create new claims or negate the finality of his
previously denied claims. It is the diagnosed disability
that forms the factual basis of a claim, not the theory of
causation or entitlement. See Boggs v. Peake, 520 F.3d 1330
(2008).
Although Boggs addressed a decision previously denied by the
Board rather than the RO, case law has consistently treated
decisions previously denied by either the RO or the Board in
a consistent manner as far as reopening. See Barnett v.
Brown, 83 F.3d 1380 (Fed. Cir. 1996) (the Board has
jurisdiction to determine whether new and material evidence
has been submitted to reopen a claim previously denied by the
Board, regardless of the RO's finding on the issue of
reopening); see also Jackson v. Principi, 265 F.3d 1366, 1369
(Fed. Cir. 2001) (the Board has a jurisdiction to determine
whether new and material evidence has been submitted to
reopen a claim previously denied by the RO, regardless of the
RO's finding on that issue of reopening). The Board sees no
reason to deviate from that consistency in its application of
Boggs.
In each instance presently before the Board, the veteran was
notified of the decision and of his appellate rights in the
same month in which the decision was rendered. In neither
instance did the veteran initiate an appeal to the Board of
the decision. Thus each decision became final. 38 U.S.C.A.
§ 7105(c).
Generally, a claim which has been denied in an unappealed RO
decision may not thereafter be reopened and allowed. 38
U.S.C.A. § 7105(c) (West 2002). However, if new and
material evidence is presented or secured with respect to a
claim which has been disallowed, the Secretary shall reopen
the claim and review the former disposition of the claim. 38
U.S.C.A. § 5108 (West 2002). Hence, before reaching the
issue of whether service connection is warranted, the Board
must first determine whether the claims may be reopened. See
Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc);
see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356,
1359-60 (Fed. Cir. 1998).
In the May 2005 rating decision, the RO determined that new
and material evidence had not been submitted to reopen either
of these claims. In the November 2005 Statement of the Case,
the RO reopened the claim for entitlement to service
connection for an acquired psychiatric disorder and denied
the claim on the merits. While the treatment of the claim
for service connection for a gastrointestinal disability in
that Statement of the Case is somewhat unclear, the RO did
address the merits of the claim, thus implicitly reopening
the claim and denying the claim on the merits.
Regardless of the RO's decision, the Board has jurisdictional
responsibility to determine whether a claim previously denied
by the RO is properly reopened. See Jackson v. Principi, 265
F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. § 5108,
7105(c)). Accordingly, the Board must initially determine on
its own whether there is new and material evidence to reopen
the claim for service connection for a low back disorder.
The Court has clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim as
in this case dealing with a claim for service connection.
Evans v. Brown, 9 Vet. App. 273 (1996). It is the specified
bases for the final disallowance that must be considered in
determining whether the newly submitted evidence is
probative. Id. Such evidence must tend to prove the merits
of the claim as to each essential element that was a
specified basis for that last final disallowance of the
claim. Id.
For the limited purpose of determining whether the claims are
to be reopened, the Board must presume such evidence
credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Furthermore, the weighing of evidence is not applicable to
determining whether a claim is to be reopened. See Elkins 12
Vet. App. at 218-19 (holding that the Board must reopen a
claim before weighing the probative value of the evidence).
As to the claim for an acquired psychiatric disorder, the
bases for the September 2003 denial were that the disability
was identified by the medical evidence as bipolar disorder
and hence the claimed symptoms of memory loss, depression,
and insomnia were not due to an undiagnosed illness, his
psychiatric disability did not occur and was not aggravated
during service, and his psychiatric disability was not
subject to presumptive service connection. Therefore,
evidence necessary to reopen the claim must either show that
the veteran suffered from bipolar disorder during service or
that his bipolar disorder was the result of service,
including as caused by or aggravated by a disability for
which service connection has already been established.
Evidence pertinent to a psychiatric disability, of record at
the time of the September 2003 rating decision, consisted of
the following: service medical records; VA treatment
records, including records from August 2002 through December
2002 reporting symptoms of depression, memory impairment, and
insomnia and diagnosing the veteran with depression and
adjustment disorder; letters from "L.M.", the veteran's
mother and "N.C.", the veteran's aunt, both describing
observation of the some of the same symptoms described by the
veteran, and a report of an August 2003 VA general medical
examination which diagnosed bipolar disorder.
Evidence pertinent to a psychiatric disability, added to the
record since the September 2003 rating decision includes the
following: VA treatment records, for example from August
2004, describing the same symptoms described in the earlier
records and providing diagnoses of depression and anxiety; a
copy of an October 2004 newspaper article from the New York
Times reporting that some Gulf War veteran's had experienced
psychiatric and gastrointestinal problems; and a report of an
October 2005 VA psychiatric examination.
The October 2005 examination report provides significant
evidence of the veteran's psychiatric disability and
addresses its relationship to service. This report thus
raises a reasonable possibility of substantiating the
veteran's claim. As the Court indicated in Elkins, the
weighing of evidence is not applicable to determining whether
a claim is to be reopened. Therefore, the Board finds that
the veteran's claim for service connection for an acquired
psychiatric disorder must be reopened.
Service connection for a stomach and bowel condition was
denied in December 2003 because the symptoms were attributed
to a known clinical diagnosis, gastroesophageal reflux
disease (GERD), and this disability was not shown to have
occurred or been aggravated during service.
Evidence pertinent to a gastrointestinal disability, of
record at the time of the December 2003 rating decision,
included VA treatment notes and reports of a VA examination
conducted in October 2003. The reports of the examination
indicated that there was no objective evidence of
gastroesophageal reflux or peptic ulcer. VA treatment
records, an April 2003 note, for example, documented that the
veteran suffered from gastroesophageal reflux disease (GERD),
and documented viral gastroenteritis in December 2002.
Evidence pertinent to a gastrointestinal disability, added to
the record since the December 2003 rating decision, includes
the following: VA treatment records, for example September
2004 notes in which in which the veteran reported symptoms of
stomach acid and pain and a February 2005 report of
constipation, the New York Times article described above
that includes statements that Gulf War veteran's have
presented with symptoms of diarrhea; and a report of a
September 2005 VA examination of the veteran's
gastrointestinal system.
The September 2005 examination report provides significant
evidence of the veteran's claimed gastrointestinal
disability. This report thus raises a reasonable possibility
of substantiating the veteran's claim. As the Court
indicated in Elkins, the weighing of evidence is not
applicable to determining whether a claim is to be reopened.
Therefore, the Board finds that the veteran's claim for
service connection for a gastrointestinal disability must be
reopened.
As explained in the Remand portion of this document,
additional development is necessary before the Board can
address the merits of the veteran's reopened claims. See 38
C.F.R. § 3.159(c).
Finally, regarding the duties to assist and notify, in the
event that any defect in notice or assistance is found, the
Board emphasizes that, given the favorable disposition of the
appeal, such defect does not result in any prejudice to the
veteran. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2008); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
ORDER
New and material evidence having been submitted, the
veteran's claims for entitlement to service connection for an
acquired psychiatric disability and a gastrointestinal
disability are reopened.
REMAND
During a December 2004 VA examination, the veteran reported
that he "is also applying for social security benefits. In
a January 2005 VA treatment note, the clinician reported that
"[t]hey [the veteran and his mother] live on his mother's SS
and his disability; he is waiting to hear from SS about his
claim, he should have his court date some time in January."
These reports place VA on notice that Social Security
Administration (SSA) records pertinent to all issues on
appeal may exist. 38 U.S.C.A. § 5103A(b) requires VA to
obtain such records unless VA is reasonably certain that such
records do not exist or that continued efforts to obtain the
records would be futile. The RO should make arrangements to
obtain SSA decisions and associated medical records related
to any claim for SSA disability benefits by the veteran. If
the records do not exist, documentation of VA's efforts to
obtain the records and a negative reply should be associated
with the claims file.
Here, the medical opinions of record are somewhat incomplete.
In medical matters, the Board is prohibited from
supplementing the record with its own unsubstantiated
opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Hence, on Remand, the veteran should be afforded VA
examinations with regard to his claimed disabilities, and
opinions should be rendered as to the relationship, if any,
between his claimed disabilities and his service, including
whether any of his claimed disabilities were caused by or
aggravated by a disability for which service connection has
already been established.
Accordingly, the case is REMANDED for the following action:
1. Send the veteran a VCAA notice letter
that explains the evidence not already of
record that is necessary to substantiate
the claims on a direct or secondary theory
of entitlement, what evidence and
assistance VA will seek to provide, and
what evidence and information the claimant
is expected to provide. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159.
2. Request from the Social Security
Administration (SSA) all records related
to the veteran's claim for Social Security
disability benefits, including all medical
records and copies of all decisions or
adjudications; and associate the records
with the claims file. If no records are
available, a negative reply should be
obtained and associated with the claims
file.
3. After associating with the claims file
any evidence submitted by the veteran and
either records obtained from the SSA or a
negative reply from the SSA, schedule the
veteran for a VA medical examination.
Provide the examiner with the veteran's
claims file and a copy of this Remand.
The examiner is asked to review the
veteran's medical history, including the
claims file and indicate whether his
claims file has been reviewed.
The examiner is asked to address the
matters listed below. The examiner is
asked to state his or her reasoning in
arriving at the opinion.
(a) Address whether the veteran suffers
from the following:
(i) liver disease
(ii) a gastrointestinal disability
manifested by diarrhea and constipation
(iii) neurologic disability of his
lower extremities,
(iv) a disability involving all of the
joints of his body, other than his
knees, left hip, right elbow, and right
shoulder
(v) profuse sweating arising from
other than his obesity, lack of
physical conditioning, and use of
Statin drugs.
(b) Provide an opinion as to whether any
of the disabilities identified in part (a)
(if found) have been caused by or
aggravated by his service-connected knee
disabilities.
4. After associating with the claims file
any evidence submitted by the veteran and
either records obtained from the SSA or a
negative reply from the SSA, schedule the
veteran for a VA psychiatric examination.
Provide the examiner with the claims file
and a copy of this Remand. The examiner
is asked to review the veteran's history,
including the claims file, and address the
following matters:
Provide an opinion as to whether the
veteran's bipolar disorder (or any other
identified psychiatric disorder) is caused
by or aggravated by his knee disabilities.
5. Then, readjudicate the issues on
appeal. If any benefit sought is not
granted, the veteran and his
representative should be furnished a
Supplemental Statement of the Case, and be
afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs